A federal Administrative Law Judge has issued a scathing ruling against Affinity Medical Center of Massillon, Oh. finding the hospital guilty of multiple violations of federal labor law in refusing to recognize and bargain with its registered nurses, terminating a long term Affinity RN for union activity, and illegally threatening other RNs for advocating for patient safety.

Affinity RNs voted to join National Nurses Organizing Committee-Ohio, an affiliate of National Nurses United, in August, 2012 in a secret ballot election overseen by the National Labor Relations Board which certified the democratic election in early October.

But the hospital, which is affiliated with Tennessee-based Community Health System, has refused to recognize or bargain with the RNs, and engaged in what RNs view as a scorched earth policy of retaliation against union supporters, highlighted by the firing of Ann Wayt, a 23-year Affinity RN on trumped up charges, and threats against other RNs for documenting and reporting problems with unsafe staffing and concerns about other unsafe patient assignments.

"We are very pleased with this decision,” said Affinity RN Michelle Offenberger. “Affinity nurses are looking forward to bargaining with CHS for a contract that will give us the ability to ensure the safety of our patients."

"I was confident that the truth would come out,” said Wayt. “The judge has spoken for me. I want to thank the community, the nurses at Affinity, and the nurses across the country in my union for their support."

“Justice prevailed. Ann should be praised for her strength and courage. There is still justice in America and this should prove to all nurses that when we stand together for what is right for our patients and nurses we will prevail to the highest level,” said Debbie McKinney, an Affinity RN

In his ruling issued July 1, Judge Arthur Amchan ordered Affinity to:

Recognize and bargain with the RNs who are represented by NNOC-Ohio.

Reinstate Wayt, with back pay and restitution of benefit or pension losses – and withdraw efforts to have Wayt’s RN license pulled by the Ohio State Board of Nursing

Cease and desist from discharging, disciplining or otherwise discriminating against other RNs.

End threats, coercion, and other acts of retaliation against RNs who submit Assignment Despite Objection (ADO) forms to the employer documenting unsafe assignments.

Stop denying access to NNOC representatives.

End all actions that interfere with the RNs’ federally protected rights to engage in collective activity on behalf of patients and their colleagues.

The NLRB intends to go to federal court to seek an injunction requiring Affinity to comply with federal labor law or face penalties that could range from fines to criminal contempt findings.

Federal judges have recently issued injunctions against two CHS California facilities represented by the California Nurses Association, another NNU affiliate. NLRB complaints have also been issued against two other NNOC-represented CHS hospital in West Virginia.

Strong wording by Judge Amchan in the decision

Judge Amchan dismissed pretexts raised by Affinity attorneys to justify their refusal to recognize and negotiate with the RNs, calling one position a “red herring,” noting another was “simply irrelevant to this case,” and admonished the hospital attorneys for “declining my suggestion that it make an offer of proof” on some of the issues.

Much of the decision concerns Affinity’s retaliation against Wayt, a prominent union supporter, “with a 23-year spotless employment history” who the hospital fired on what NNOC-Ohio says were patently false misconduct charges.

Judge Amchan cited the timing of the start of disciplinary action “the day of the election (by itself) sufficient to raise a rebuttal inference of discriminatory motive.”

He noted the “absence of any actual or potential harm” to the patient in the incident cited by the hospital as its excuse, and emphasized that the hospital had, with one exception, “never terminated a nurse and reported a nurse to the Ohio Board of Nursing in similar circumstances.”

Overall, in especially strong wording, the judge said Affinity “has not come close to proving it would have fired Wayt or reported her to the Nursing Board absent its animus towards the Union and Wayt’s support for the Union. In summary, I conclude that Wayt’s misconduct was a pretext to retaliate against her for her union activities.”

Judge Amchan singled out the actions of nurse supervisor Susan Kress “who this record shows harbored great animus towards the Union and its supporters” who failed to even “bother to ask Wayt for an explanation of her conduct.”

Kress was also cited for threats against RNs after finding ADO forms in her mailbox in the hospital’s intensive care unit, where the hospital’s sickest patients are housed and where inadequate staffing or other unsafe assignments are especially dangerous. Kress threatened to slap the forms on nurses foreheads, apparently told another “if you fill out one of these forms I’m going to smash it through your forehead,” and carry out other acts of retaliation and threats of discipline. All of this behavior constituted a violation of federal law, Judge Amchan ruled.

Finally, the Judge ordered Affinity to post a notice to all its employees informing them that it had been found by the NLRB to have violated federal labor law, and that the employees have the right to form, join, and assist a union, act together for their benefit and protection, and that the employer cannot engage in acts of retaliation, discrimination or other threats.